Citation Nr: 0815249
Decision Date: 05/08/08 Archive Date: 05/14/08
DOCKET NO. 04-19 936 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to service connection for a chronic right knee
disorder.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
J. T. Hutcheson, Counsel
INTRODUCTION
The veteran had active service from January 1985 to January
1989 and from October 1989 to February 1994.
This matter came before the Board of Veterans' Appeals
(Board) on appeal from a September 2003 rating decision of
the Waco, Texas, Regional Office (RO) which determined that
new and material evidence had not been received to reopen the
veteran's claim of entitlement to service connection for a
chronic right knee disorder. In June 2006, the veteran was
afforded a hearing before the undersigned Veterans Law Judge
sitting at the RO. In October 2006, the Board determined
that new and material evidence had been received to reopen
the veteran's claim of entitlement to service connection for
a chronic right knee disorder and remanded the veteran's
claim to the RO for additional action.
FINDING OF FACT
A chronic right knee disorder was not objectively manifested
during active service or for many years thereafter.
CONCLUSION OF LAW
A chronic right knee disorder was not incurred in or
aggravated by active service. 38 U.S.C.A. §§ 1110, 1131,
5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R.
§§ 3.102, 3.159, 3.303, 3.326(a) (2007).
REASONS AND BASES FOR FINDING AND CONCLUSION
I. Veterans Claims Assistance Act of 2000
In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United
States Court of
Appeals for Veterans Claims (Court) held, in part, that a
Veterans Claims Assistance Act of 2000 (VCAA) notice, as
required by 38 U.S.C.A. § 5103(a), must be provided to a
claimant before the initial unfavorable RO decision on a
claim for Department of Veterans Affairs (VA) benefits. In
reviewing the veteran's claim for service connection, the
Board observes that the RO issued VCAA notices to the veteran
in June 2003, July 2003, March 2006, and November 2006 which
informed the veteran of the evidence generally needed to
support a claim for service connection and the assignment of
an evaluation and effective date of an initial award of
service connection; what actions he needed to undertake; and
how the VA would assist him in developing his claim. Such
notice effectively informed him of the need to submit any
relevant evidence in his possession. The June 2003 and July
2003 VCAA notices were provided prior to the September 2003
rating decision from which the instant appeal arises.
The VA has attempted to secure all relevant documentation.
The veteran's service medical records arising from his first
period of active service are not of record. Attempts to
locate the documentation have proven unsuccessful. The
veteran indicated that he had been treated for right knee
trauma at the Upper Heyford, United Kingdom, Air Force Base
medical facility. In May 2007, the National Personnel Record
Center (NPRC) stated that a search of the medical facility's
records revealed no information pertaining to the veteran.
The veteran was afforded a VA examination for compensation
purposes. The examination report is of record. The veteran
was afforded a June 2006 hearing before the undersigned
Veterans Law Judge sitting at the RO. The hearing transcript
is of record. The Board remanded the veteran's reopened
claim to the RO for additional development of the record.
There remains no issue as to the substantial completeness of
the veteran's claim. 38 U.S.C.A. §§ 5103, 5103A, 5107 (West
2002 & Supp. 2007); 38 C.F.R §§ 3.102, 3.159, 3.326(a)
(2007). Any duty imposed on the VA, including the duty to
assist and to provide notification, has been met. Quartuccio
v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson,
19 Vet. App. 103 (2005), rev'd on other grounds, No. 05-7157
(Fed. Cir. Apr. 5, 2006); Dingess/Hartman v. Nicholson, 19
Vet. App. 473 (2006); Sanders v. Nicholson, 487 F.3d 881
(Fed. Cir. 2007); petition for cert. filed, __ U.S.L.W.__
(U.S. Mar. 21, 2008) (No. 07A588).
II. Service Connection
Service connection may be granted for chronic disability
arising from disease or injury incurred in or aggravated by
active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). For
the showing of chronic disease in service, there is required
a combination of manifestations sufficient to identify the
disease entity and sufficient observation to establish
chronicity at the time, as distinguished from merely isolated
findings or a diagnosis including the word "chronic." When
the fact of chronicity in service is not adequately
supported, then a showing of continuity after discharge is
required to support the claim. 38 C.F.R. § 3.303(b) (2007).
Where a veteran served continuously for ninety days or more
during a period of war or during peacetime service after
December 31, 1946, and arthritis (degenerative joint disease)
becomes manifest to a degree of ten percent within one year
of termination of such service, such disease shall be
presumed to have been incurred in service even though there
is no evidence of such disease during the period of service.
38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R.
§§ 3.307, 3.309 (2007).
Service connection may be granted for any disease diagnosed
after discharge, when all the evidence, including that
pertinent to service, establishes that the disease was
incurred in service. Presumptive periods are not intended to
limit service connection to diseases so diagnosed when the
evidence warrants direct service connection. The presumptive
provisions of the statute and VA regulations implementing
them are intended as liberalizations applicable when the
evidence would not warrant service connection without their
aid. 38 C.F.R. § 3.303(d) (2007).
As noted above, the service medical documentation associated
with the veteran's first period of active service is not of
record and was apparently lost by the military through no
fault of the veteran. The veteran's service medical
documentation from his second period of active service makes
no reference to a chronic right knee disorder and/or a prior
right knee injury. The report of the veteran's February 1994
physical examination for service separation relates that the
veteran neither complained of nor exhibited a right knee
disability.
An October 1986 letter from the veteran to his parents
written during his first period of active service conveys
that his knee was swollen; his muscles had "pushed my knee
cap over or something like that;" and he was receiving
therapy for his knee.
Clinical documentation dated in February 1999 from Melburn K.
Hueber, M.D., indicates that the veteran slipped on some ice;
fell; and twisted his right knee while working on February 1,
1999. He reported having experienced "no previous knee
problems." The veteran was diagnosed with right knee
strain.
A February 26, 1999, physical evaluation from Dr. Hueber
states that the veteran complained of right knee pain of two
and one-half weeks' duration. He presented a history of
having slipped on some ice and twisted his right knee
approximately two and one-half weeks prior to the evaluation.
Contemporaneous X-ray studies of the right knee revealed
findings consistent with an old distal femoral osteochondroma
and no significant arthritic changes. An impression of
"right lateral knee strain, hamstring tendon insertion
inflammation" was advanced.
A February 2003 physical evaluation from Bill S. Barnhill,
M.D., relates that the veteran presented a history of "some
problems with his right knee dating back to 1998-1999" and
"a workman's comp injury at that time." An impression of
"patellofemoral chondral overload with suspected chondral
degeneration and breakdown of the right patellofemoral
joint" was advanced.
An April 2003 written statement from Dr. Barnhill, conveys
that the veteran recalled having twisted and injured "his
knee while working on some planes" during active service.
He was treated with "some physical therapy" by military
medical personnel. Dr. Barnhill commented that "the
patellar chondromalacia that he has could definitely be
related to this incident."
In his April 2003 application to reopen his claim of
entitlement to service connection, the veteran clarified that
he had injured his right knee in 1986 while stationed at the
Upper Heyford, United Kingdom, Royal Air Force Base.
In a July 2003 written statement, the veteran related that he
injured his right knee during active service when aircraft
exhaust "blew my (bread van) taxi over" and reinjured the
knee when "a jammer (bomb loader)" ran into his right leg.
He was treated for his right leg injury by military medical
personnel who informed him that his muscles were inflamed and
had pushed his "knee cap to the left." The veteran was
treated with Motrin, physical therapy, and whirlpool
sessions. He stated that the service medical records
associated with his first period of active service had been
irretrievably misplaced or otherwise lost during active
service.
A July 2003 treatment record from Dr. Barnhill reports that
the veteran "did bring me in a statement in support of claim
regarding the VA stating that he did have previous injury to
this knee with trauma that was not mentioned on the initial
evaluation."
In a September 2003 written statement, the veteran clarified
that he had initially injured his right knee during active
service and subsequently reinjured it while employed by the
United States Postal Service (USPS).
An October 2003 written statement from T. R. B. relates that
he had been stationed with the veteran at the Upper Heyford,
United Kingdom, Royal Air Force Base in 1985 and 1986. He
recalled that the veteran had been treated for a right knee
disability with a knee brace and physical therapy for a
significant period during active service. He could not
remember how the veteran had injured his knee.
A November 2003 written statement from the veteran's mother
conveys that the veteran had called her from England sometime
between 1985 and 1987 and informed her that he had injured
his right knee and was receiving therapy for it.
In an undated Report of Accidental Injury in Support of Claim
for Compensation or Pension (VA Form 21-4176) received in
February 2004, the veteran reiterated that he had slipped on
some ice while delivering mail on February 1, 1999; twisted
his right knee; and subsequently went to a doctor.
At a June 2004 VA examination for compensation purposes, the
veteran presented a history of having injured his right knee
between 1985 and 1987 during active service when a bomb
loader struck the medial aspect of his knee. He subsequently
reinjured his right knee when a vehicle which he was driving
was overturned by jet engine wash. He reported further that
he had reinjured his right knee after service when he twisted
the knee while employed by the USPS. The veteran was
diagnosed with right knee chondromalacia patella with
degenerative bony changes. The examiner opined that:
Regarding service connection, it is noted
that Dr. Hubner feels that the right knee
problems may be causally related to the
previous service-connected left knee
problems. However, given the history
given by the veteran, this examiner feels
that the proximal cause of the right knee
problems is the on the job injury
described above, and that service
connection of the right knee problems
cannot be definitively stated without
resorting to speculation.
In a February 2005 written statement, the veteran reiterated
that the service medical records associated with his first
period of active service had not been incorporated into the
record and were apparently lost. He averred that the missing
service medical records would reflect that he had injured his
right knee.
In his June 2006 Statement of Accredited Representative in
Appealed Case, the accredited representative asserted that
the veteran had initially injured his right knee during his
first period of active service and subsequently reinjured the
knee in the February 1999 employment-related accident.
At the June 2006 hearing before the undersigned Veterans Law
Judge sitting at the RO, the veteran testified that: he had
sustained two inservice right knee injuries during his first
period of active service; had been treated at the Upper
Heyford, United Kingdom, Air Force Base hospital; and had
been issued a knee brace and crutches. He stated that he was
found to exhibit no right knee abnormalities on his
subsequent physical examination for reenlistment. The
veteran denied having experienced any right knee problems
during his second period of active service or prior to
reinjuring it when he twisted the joint while delivering
mail.
An undated written statement from J. M. P. received in
December 2006 indicates that he had been stationed with the
veteran at the Upper Heyford, United Kingdom, Royal Air Force
Base in 1985 and 1986. He recalled that the veteran had
sustained a right knee injury in 1986 when a bomb jammer
backed into him. He had personally taken the veteran to the
base hospital where the veteran was treated for his right
knee trauma.
Private clinical documentation dated in February 2007
indicates that the veteran complained of right knee pain. He
reported that he had reinjured his right knee on February 6,
2007. An assessment of right knee strain was advanced.
In an October 2007 written statement, the veteran advanced
that the June 2004 VA examination for compensation purposes
was deficient for rating purposes as the examiner "had my
left knee as the problem not right knee at end of report."
The Board has reviewed the probative evidence of record
including the veteran's testimony and written statements on
appeal. The service medical documentation of record makes no
reference to a chronic right knee disorder. The first
objective evidence of a chronic right knee disorder is Dr.
Hubner's February 1999 diagnosis of right knee strain. At
that time, the veteran was specifically noted to have had
"no previous knee problems." The veteran was subsequently
diagnosed with right knee chondromalacia patella with
degenerative bony changes.
The veteran advances that he sustained repeated right knee
trauma during his first period of active service when he was
struck by a bomb jammer and then again when he was injured in
a motor vehicle accident. In support of his claim for
service connection, the veteran submitted an October 1986
letter which he sent to his parents during active service and
lay statements from his mother and two fellow servicemen who
served with him at the same military facility. The veteran
and his fellow servicemen are competent to state that the
veteran sustained inservice right knee trauma and received
treatment for such trauma from military medical personnel
given that such events were clearly observable. However,
they are not capable of offering evidence involving medical
knowledge such as the causation of the veteran's current
chronic right knee disorder. Espiritu v. Derwinski, 2 Vet.
App. 492, 494 (1992).
The Board has considered the veteran's inservice letter and
the post-service lay statements; however, the competent
medical evidence is against the veteran's claim that his
current knee disability is related to any event of service
origin. While the service medical records from his first
period of service are not available, the records from his
second period of service are of record and reflect no
contemporaneous knee complaints or presence of a knee
disorder on the examination for separation in 1994. In
addition, when first seen with knee complaints following a
post service work injury in 1999, the veteran reported to the
examiner that he had no previous knee problems. This
evidence weighs heavily against the veteran's claim. In
addition, the private medical opinion that relied on the
veteran's reported history is accorded less weight than the
VA opinion that considered this evidence.
While the clinical and examination reports of record conflict
as to the etiological relationship between the veteran's
reported inservice right knee trauma and his chronic right
knee disorder, the Board finds the VA examiner's opinion to
be more persuasive. While Dr. Barnhill commented that "the
patellar chondromalacia that he has could definitely be
related to" the veteran's reported inservice right knee
trauma, the examiner at the June 2004 VA examination for
compensation purposes specifically concluded that, "given
the history given by the veteran, ... the proximal cause of the
right knee problems is the [February 1999] on the job injury
described above, and that service connection of the right
knee problems cannot be definitively stated without resorting
to speculation." The Board finds that the VA examiner's
opinion to be of more probative value. While acknowledging
that the report of the June 2004 VA examination for
compensation purposes is not a model of clarity and contains
an erroneous reference to "previous service-connected left
knee problems," it is readily apparent that it was the
examiner's opinion that the veteran's chronic right knee
disorder was etiologically related to his February 1999 on
the job injury rather than his reported inservice right knee
trauma may years earlier. Dr. Barnhill's opinion is of less
probative value as the doctor failed to comment on the lack
of continuity of the veteran's right knee symptomatology
during the period prior to his February 1, 1999,
employment-related right knee trauma, the normal findings on
examination for separation from service in 1994, and the
veteran's February 1999 express denial of a prior history of
"knee problems." The physician appears to rely upon the
veteran's reported history without considering this relevant
evidence. The VA examiner's opinion, relying on the evidence
of record is more persuasive.
The Board notes that unfortunately, the service medical
records from the veteran's his first period of service is not
of record; however, the service medical records arising from
his second period of service have been incorporated into the
claims file and do reflect that the veteran neither
complained of nor exhibited any right knee disability. In
addition, contemporaneous to his February 1999 on the job
injury, the veteran reported to his private treating
physician that he had experienced "no previous knee
problems." As a chronic right knee disorder was not
objectively manifested during or proximate to active service
or to have otherwise originated or been related to service,
the Board concludes that the preponderance of the evidence is
against the claim and that service connection for the
veteran's current knee disorder is not warranted.
ORDER
Service connection for a chronic right knee disorder is
denied.
______________________________________________
STEVEN L. COHN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs